Hoppock Law Firm, LLC – a Kansas City Immigration Law Firmhttps://www.hoppocklawfirm.com
We represent immigrants in court, on appeal, and in visa and benefit applications.Wed, 05 Dec 2018 15:48:39 +0000en-UShourly1https://wordpress.org/?v=5.0.1https://i2.wp.com/www.hoppocklawfirm.com/wp-content/uploads/2015/12/cropped-weblogo.jpg?fit=32%2C32&ssl=1Hoppock Law Firm, LLC – a Kansas City Immigration Law Firmhttps://www.hoppocklawfirm.com
323285085701The Lookout – EOIR’s Fraud and Abuse Prevent Program Newsletterhttps://www.hoppocklawfirm.com/the-lookout-eoirs-fraud-and-abuse-prevent-program-newsletter/
https://www.hoppocklawfirm.com/the-lookout-eoirs-fraud-and-abuse-prevent-program-newsletter/#respondWed, 05 Dec 2018 15:48:39 +0000https://www.hoppocklawfirm.com/?p=6038The Executive Office of Immigration Review (which is responsible for the immigration courts and the Board of Immigration Appeals) has an active Fraud and Abuse Prevention Program (FAPP). I was excited to learn that since May, 2017 the FAPP has been publishing a semi-regular newsletter about the activities of the program called “The Lookout.” In September, […]

A “Lookout List” – a list of individuals the agency believes to be of particular concern because they are engaging in fraud or unauthorized practice of law

Addresses of concern (commonly seen addresses where unauthorized practice of law is suspected)

A list of “Current Scams”

Recent Prosecutions, and

A list of Immigration Fraud news stories.

Each edition contains a series of links to further information about the work of the FAPP (each of which I’ll now be requesting via FOIA). As far as I can tell the Lookout is published bi-monthly (although they apparently took several months off last winter).

]]>https://www.hoppocklawfirm.com/the-lookout-eoirs-fraud-and-abuse-prevent-program-newsletter/feed/06038Did the BIA Edit the Attorney General’s Decision in Matter of Castro-Tum? If So, Does it Matter?https://www.hoppocklawfirm.com/did-the-bia-edit-the-attorney-generals-decision-in-matter-of-castro-tum-if-so-does-it-matter/
https://www.hoppocklawfirm.com/did-the-bia-edit-the-attorney-generals-decision-in-matter-of-castro-tum-if-so-does-it-matter/#respondFri, 02 Nov 2018 01:19:31 +0000https://www.hoppocklawfirm.com/?p=6021A series of FOIA requests regarding the Attorney General’s decision in Matter of Castro-Tum seem to have revealed something strange about that decision: it was edited after the Attorney General issued it. E-mail messages to and from BIA staff on May 17, 2018, the day the Attorney General purportedly issued the decision, now indicate the decision […]

A series of FOIA requests regarding the Attorney General’s decision in Matter of Castro-Tum seem to have revealed something strange about that decision: it was edited after the Attorney General issued it.

E-mail messages to and from BIA staff on May 17, 2018, the day the Attorney General purportedly issued the decision, now indicate the decision received from the AG was incomplete and that it was edited by the BIA and its staff and then twice re-uploaded on the agency’s website that evening. It was again edited and again re-uploaded the next morning.

The resulting question is whether the version of that decision which is currently posted on the EOIR’s website is really the decision made by the Attorney General. And if it was edited after the AG issued the decision, is it still binding?

Background on the Certification Process and the AG’s Decision

The Attorney General has limited authority to make immigration policy without an act of Congress. One way permitted by the current regulations is to order the Board of Immigration Appeals to “certify” a pending appeal to the Attorney General and then for the Attorney General to issue a decision. Margaret H. Taylor, a brilliant law professor and expert on administrative law, has written a lengthy explainer on the process (and concerns about whether it is lawful) here.

When the Attorney General issues a decision this way, it is supposed to then guide the BIA and Immigration Judges going forward. One of the decisions the Attorney General certified to himself this year was a BIA Decision in the case of Reynaldo Castro-Tum, a child who had not appeared at his asylum hearing. Because the Immigration Judge hadn’t seen enough evidence the kid actually gotten notice of the hearing, he temporarily paused the case until the kid could be informed.

The Attorney General’s decision currently on the agency’s website here said for the first time that temporarily pausing a case, an action called “administrative closure,” which the agency and courts have recognized as lawful for over 50 years, is suddenly no longer allowed. If that decision is binding, it makes a lot of people’s immigration court cases needlessly more difficult.

So, Did the BIA Edit the Decision After-theFact?

Here’s the timeline from the e-mails we’ve received through via FOIA requests and why I think the BIA and its staff edited the decision after-the-fact at least three times:

1. EOIR Director Receives Decision from AG and Sends to Staff.

On May 17, 2018 at 1:07 PM, EOIR director James McHenry sent an e-mail to unknown participants indicating the AG’s decision in Castro-Tum was finished.

By the way, my FOIA request for McHenry’s e-mails has been referred to the AG’s office for unknown reasons. This version was located in EOIR employee Kate Sheehy’s e-mail, which is here. McHenry’s e-mail said he was attaching a .pdf and a Microsoft Word version of the AG’s decision and that this version purportedly sent to him by the AG’s office was “effective immediately.”

2. EOIR Uploads the AG’s Decision in its Original Form.

At 4:39 PM on May 17, 2018 the decision has been uploaded to the agency’s website here, and this e-mail is sent to the BIA members, the IJs, and most of the EOIR’s staff:

The full pdf of these e-mails, which were obtained via FOIA from EOIR staff member Katherine Reilly, is here.

3. The BIA Edits the Decision and Uploads the New, Edited Version.

At 5:35 PM, Charles Adkins-Blanch, the Vice Chairman of the Board of Immigration Appeals sends this e-mail, saying “please see the attached updated decision.”

At 5:45 PM Mr. Adkins-Blanch indicates that the BIA added additional language to Footnote 13 of the AG’s original decision, and the updated version was uploaded to the agency’s website:

Then an EOIR staff member said the “BIA folks” should “redo the pdf” and upload the edited version, what would be the third official version of the decision uploaded to the agency’s website:

The evening of May 17, 2018, the decision was updated to include those headnotes, and a new version was uploaded to the agency’s website.

5. The BIA Apparently Again Edits the Decision and Again Re-Uploads it on May 18.

The last edit we don’t know much about. We only know from the metadata in the document itself that the version on the agency’s website today says it was edited on May 18. Specifically, the metadata contained in the .pdf file of final version on the agency’s website says the current .pdf file was created from a Word document on May 18, 2018 at 9:34 AM.

As far as I can tell, this is at least the third different version of this decision that was uploaded to the agency’s website.

If the BIA Edited the AG’s Decision, Does it Matter?

I think these e-mails show that the AG issued a formal decision, sent it to EOIR staff to upload to its website, and then EOIR staff, including employees of the BIA, edited that decision.

So, what gives? Does this matter?

I think the answer is yes.

There are already substantial questions about whether the Attorney General has authority to, with the stroke of a pen, change 60 years of settled immigration law, which is codified in Federal Regulations and in published federal court decisions. Many of those questions are outlined in Margaret Taylor’s article from 2016.

But let’s assume the AG really does have this authority. If he’s going to issue a decision that commands the BIA to act, shouldn’t his actual decision stand on its own?

What authority does the BIA have to edit a decision issued by the AG which purports to direct the BIA’s conduct? There is certainly no authority for that in the federal regulations or any prior agency or court decision. Was anything else in the decision edited? How much was added or taken away from Footnote 13? And where is the prior versions of the decision, the first of which was purportedly attached to the May 17, 2018 e-mail James McHenry sent at 1:07 PM?

These are not petty concerns. The child in the case of Matter of Castro-Tum was ordered deported as a direct consequence of this decision.

Soon, people negatively affected by the AG’s decision in Matter of Castro-Tum will start seeking federal court review of the decision if they haven’t already. And in those cases the courts will be asked if that decision is a reasonable interpretation of the law. If courts are asked to decide whether the AG’s decision was well-reasoned or makes sense, shouldn’t they get to read the actual decision the AG issued?

If the decision was riddled with errors, contained incomplete sentences in a footnote, or needed to be edited after-the-fact, wouldn’t that matter when a court is deciding whether it was a reasonable action by the Attorney General?

I don’t know the answer to all of these questions. I have a series of additional FOIA requests pending and anticipate we are likely going to have to take some of them to court eventually. But for now, as we try to determine on the ground whether Immigration Judges can administratively close cases (as the regulations say they can but the current version of the AG’s says they can’t), it is going to be important to get to the bottom of this.

]]>https://www.hoppocklawfirm.com/did-the-bia-edit-the-attorney-generals-decision-in-matter-of-castro-tum-if-so-does-it-matter/feed/06021Post-Pereira, the DOJ Chooses Harsh IJ Performance Metrics Over Compliance With Supreme Court Mandatehttps://www.hoppocklawfirm.com/post-pereira-the-doj-chooses-harsh-ij-performance-metrics-over-compliance-with-supreme-court-mandate/
https://www.hoppocklawfirm.com/post-pereira-the-doj-chooses-harsh-ij-performance-metrics-over-compliance-with-supreme-court-mandate/#commentsThu, 20 Sep 2018 17:17:59 +0000https://www.hoppocklawfirm.com/?p=5998It is starting to appear the Department of Justice has chosen not to comply with the Supreme Court’s decision in Pereira v. Sessions because doing so would conflict with the agency’s self-imposed deportation quotas it is placing on Immigration Judges, which go into effect October 1, 2018. The story unfolds in a series of e-mail messages obtained […]

It is starting to appear the Department of Justice has chosen not to comply with the Supreme Court’s decision in Pereira v. Sessions because doing so would conflict with the agency’s self-imposed deportation quotas it is placing on Immigration Judges, which go into effect October 1, 2018. The story unfolds in a series of e-mail messages obtained through FOIA and involve the interplay of two federal agencies tasked with separate responsibilities in the process of deciding whether to deport a person charged with being removable.

Imagine having to go to traffic court even though the police officer wrote your ticket on a napkin, didn’t sign it, and it didn’t tell you when and where your court would be (or what you were being charged with). You or your attorney would march into court arguing this isn’t really a ticket, so why on earth am I even here? You would easily get the proceedings thrown out, because they were started improperly.

The difference here is that unlike traffic court, immigration court can result in lifetime expulsion from the United States for individuals who may have a good reason to fear being harmed or killed if deported. And not showing up to court means an automatic order of removal.

Solving this problem would be simple. As the Supreme Court observed in Pereira:

As the Government concedes, ‘a scheduling system previously enabled DHS and the immigration court to coordinate in setting hearing dates in some cases.’ Given today’s advanced software capabilities, it is hard to imagine why DHS and immigration courts could not again work together to schedule hearings before sending notices to appear.

If the system already exists, why weren’t they already using it?

The problem results from the decision by Congress in 2003 to separate of INS into two separate agencies: (1) the immigration courts (under the umbrella of the Department of Justice; and (2) the Department of Homeland Security, which is the prosecutor in immigration court cases.

The system for scheduling hearings (called “Interactive Scheduling System” or “ISS”) is owned by the Department of Justice, so it is the sole decision maker on whether the DHS, a separate agency, can access it and schedule hearings on its own. The DOJ ended that access at some point and has never restored it. Without access to the ISS system, DHS has for years simply fudged the date and time – they issue NTAs with a line for the date and time but simply write “to be determined” on the line.

This disconnect has resulted in a number of problems, the most serious of which is that immigrants don’t know when their hearing date is, so they miss the date and get ordered removed in in absentia (as happened to the immigrant in Pereira).

The Pereira decision left the DOJ with a clear command from the Supreme Court: turn your system back on so DHS can schedule hearings. Most who practice in this area thought the Department of Justice would comply. Unfortunately, they haven’t.

Despite Pereira, EOIR Vacillates on Whether to Turn on ISS

The Pereira decision was issued on June 21, 2018. Early on June 22, 2018 the court administrator for the San Diego Immigration Court, e-mailed Rico Bartolomei Jr, the Assistant Chief Immigration Judge for that area, asking if the court should keep accepting the filing of NTAs by DHS without the date and time, despite what the Supreme court had just quite plainly just said the day before.

Bartolome responded that there had been no guidance from the DOJ, so for now they would keep accepting deficient NTAs. By mid-afternoon on the 22nd, the discussion turned to whether the Department of Justice would “turn on ISS ASAP,” meaning enabling the DHS to access its scheduling system.

By June 25, 2018 it looked like the DOJ had decided to turn the ISS system back on. But an e-mail from Christopher Santoro, Principal Deputy Chief Immigration Judge, identified a substantial wrinkle:

“[W]e were also told that, consistent with the benchmarks that went out with the new court performance measures, we need to get detained NTAs their first MC within 10 days of filing and non-detained NTAs their first MC within 90 days of filing. We also cannot be “full” – in other words, if DHS wants to file an NTA, there must be a slot for them to schedule it in within 10/90 days.”

In response, the Attorney General has ordered draconian benchmarks which will require, among other things, that every judge in the country enter at least 700 orders per year. These measures are designed turn immigration courts into deportation machines – multipleAttorney Generalopinions have stripped judges of decision-making power while the agency orders more and more decisions to be made.

Relevant here, the new IJ quotas require detained hearings to be scheduled within 10 days of the prosecutor, DHS, filing the NTA with the court.

A June 25, 2018 e-mail from Mark Pasierb, chief clerk to the Immigration Court, explained that the ISS schedule system only has a certain number of slots for hearings with each judge each day. Thus, if the next ten days are “full,” allowing the DHS to access the ISS system will require it to pick a day that is beyond the DOJ’s self-imposed deportation quotas.

On June 27, 2018, Chief Immigration Judge Mary-Beth Keller sent out a timetable for when ISS would be turned on. She wrote that “effective immediately, NTAs filed at the window that do not specify the time and place of the hearing should be rejected.” She added that by July 2, 2018, the DOJ would turn the ISS system back on for non-detained cases and by July 16, 2018 for detained cases. However, that advice did not last long.

By July 11, 2018, the EOIR had decided to continue accepting non-compliant NTAs. Santoro e-mailed all court staff writing:

The Department has concluded that, even after Pereira, EOIR should accept Notices to Appear that do not contain the time and place of the hearing. Accordingly, effective immediately, courts should begin accepting TBD NTAs.

The DOJ Chooses Self-Imposed Deportation Quotas Over Complying With the Supreme Court.

What the June 25 Christopher Santoro e-mail reveals is that while the DOJ definitely has the power to turn on its scheduling system to comply with the Pereira decision, it does not want to, because it does not want that process (essentially ordered by the Supreme Court) to affect its new mega-deportation benchmarks that start on October 1, 2018.

The results are already being felt in Immigration Courts around the country. Without being able to access ISS, the prosecutors whose job it is to file these charging documents are just writing made-up dates or “dummy dates” on the charging documents. It’s hard to envision how the agency can get away with that; attorneys who file documents they know to be false (including having a pretend hearing date) are subject to discipline by their state bar.

More urgently, the people who receive these documents are showing up in court, sometimes within days, scheduling to travel across the country at times to attend a court hearing that was never even scheduled and is not going to take place.

Until the EOIR chooses to comply with the Supreme Court’s decision in Pereira (likely after parties are forced to litigate these issues in federal court) it is not clear there is any solution to this problem on the horizon.

]]>https://www.hoppocklawfirm.com/post-pereira-the-doj-chooses-harsh-ij-performance-metrics-over-compliance-with-supreme-court-mandate/feed/35998FOIA Results for the BIA Webpage (Intranet)https://www.hoppocklawfirm.com/foia-results-for-the-bia-webpage-intranet/
https://www.hoppocklawfirm.com/foia-results-for-the-bia-webpage-intranet/#respondWed, 19 Sep 2018 20:08:28 +0000https://www.hoppocklawfirm.com/?p=5990About two months ago I received a document called the “BIA Style Guide” in response to a FOIA request and saw multiple references in the Style Guide to something called the “BIA Webpage” which appeared to be an intranet of sorts, with information for BIA employees on how the agency runs. Naturally, we requested a […]

About two months ago I received a document called the “BIA Style Guide” in response to a FOIA request and saw multiple references in the Style Guide to something called the “BIA Webpage” which appeared to be an intranet of sorts, with information for BIA employees on how the agency runs.

Naturally, we requested a complete copy of the BIA Webpage. Although I had to narrow my request a bit, today I received several documents from the BIA’s intranet. From here I’ll be requesting documents listed on the pages we’ve been provided. Here’s what we got:

]]>https://www.hoppocklawfirm.com/foia-results-for-the-bia-webpage-intranet/feed/05990FOIA Results: Immigration Judges’ Conference Materials for 2018https://www.hoppocklawfirm.com/foia-results-immigration-judges-conference-materials-for-2018/
https://www.hoppocklawfirm.com/foia-results-immigration-judges-conference-materials-for-2018/#commentsTue, 21 Aug 2018 15:14:54 +0000https://www.hoppocklawfirm.com/?p=5963Every summer the Immigration Judges from around the country meet in suburban Washington D.C. for a training session. The training materials are interesting, because they help us understand the IJs’ thinking on specific issues. The 2018 conference was held at the Sheraton in Tysons Corner, VA. Jeff Sessions gave a speech at this conference which, […]

Every summer the Immigration Judges from around the country meet in suburban Washington D.C. for a training session. The training materials are interesting, because they help us understand the IJs’ thinking on specific issues. The 2018 conference was held at the Sheraton in Tysons Corner, VA. Jeff Sessions gave a speech at this conference which, for many observing, raised serious questions about his lack of willingness to allow IJs to make independent judgments. He also talked about his decision in Matter of A-B- which he published later that day.

After the conference in 2018 I requested the training materials, handouts, slides, program, and schedule. This is what I received in response:

This presentation is really striking, because Board Member Roger Pauley appears to be instructing the IJs not to apply the “categorical approach” when it doesn’t lead to a “sensible result.” The “categorical approach” is mandatory, and the Supreme Court has repeatedly had to reverse the BIA and instruct them to properly apply it. So, it’s definitely disheartening to see this is the instruction the IJs received at their conference this summer on how to apply the categorical approach:

If you look at the schedule, you’ll see there are a number of sessions for which we did not receive any materials. I’m not sure what that means. It’s possible there were no prepared remarks, no slides, no handouts, and no materials for the presentation. I think it’s more likely that there are additional materials that haven’t been produced, so we’ll be following up with EOIR to see if we can get the rest.

]]>https://www.hoppocklawfirm.com/foia-results-immigration-judges-conference-materials-for-2018/feed/15963BIA Style Manual and Other Policies and Procedureshttps://www.hoppocklawfirm.com/bia-style-manual-on-other-policies/
https://www.hoppocklawfirm.com/bia-style-manual-on-other-policies/#commentsMon, 16 Jul 2018 20:32:23 +0000https://www.hoppocklawfirm.com/?p=5947I received a final response on my FOIA request for any memoranda or guidance directed to BIA members. I was surprised by how much we received. Here they are: BIA Style Manual_redline_Redacted (242 pgs) 15-05 Handling Cases Involving Certain Applications for Cancellation and Suspension ___________________ These are the policies and procedures we previously received in […]

Obviously I still have questions and will likely file an appeal. One question is about the numbering. If there is a a policy called “13-02” does that mean it was the second policy announcement from 2013? From my review of these files, that appears to be how they’re numbered. But, if that’s the case, why weren’t the rest of them produced?

The response letter identifies a document entitled “The Draft Emergency Stay United Standard Operating Procedure (SOP)” but says that document is being withheld as “pre-decisional” under exemption (b)(5). But as long as it’s a guidance memorandum and not specific to any person’s case, it’s almost impossible that document is “pre-decisional.” Maricopa Audubon Soc’y v. United States Forest Serv.,108 F.3d 1089, 1094 (9th Cir. 1997) (“the agency must identify a specific decision to which the document is predecisional”).

]]>https://www.hoppocklawfirm.com/bia-style-manual-on-other-policies/feed/15947Pereira v. Sessions Opens Multiple New Doors to Defend Against Removalhttps://www.hoppocklawfirm.com/pereira-v-sessions-opens-multiple-new-doors-to-defend-against-removal/
https://www.hoppocklawfirm.com/pereira-v-sessions-opens-multiple-new-doors-to-defend-against-removal/#respondFri, 22 Jun 2018 16:16:32 +0000https://www.hoppocklawfirm.com/?p=5937Although the Supreme Court’s decision in Pereira v. Sessions appears fairly technical and narrow, it isn’t. It casts a light on a practice by the DHS dating back to 1996. In nearly all cases the DHS has served a deficient charging document, called a “Notice to Appear.” If, as the Supreme Court concludes, each of those […]

Although the Supreme Court’s decision in Pereira v. Sessions appears fairly technical and narrow, it isn’t. It casts a light on a practice by the DHS dating back to 1996. In nearly all cases the DHS has served a deficient charging document, called a “Notice to Appear.” If, as the Supreme Court concludes, each of those charging documents is deficient, a number of things have to change (and many of our clients will be eligible for relief from removal).

Summary of the Opinion

On June 21 st , 2018 Justice Sotomayor delivered the opinion of the court regarding Pereira v. Sessions. The opinion looked at the case of Wescley Fonseca Pereira, a native Brazilian, who entered the United States in 2000 with a visitor visa. Pereira remained in the U.S. after his visa expired, married, and had two daughters, both U.S. citizens.

In 2006, Pereira was arrested for a DUI. During his detention, the Department of Homeland Security (DHS) served him a notice to appear, ordering him to appear before an Immigration Judge in Boston on a date to be set at time to be set. In 2007, DHS filed the notice with the Boston Immigration Court and attempted to mail Pereira a more specific notice establishing the time and date of his hearing. The Boston Immigration Court sent the notice to an incorrect address and it was returned as undeliverable, though Pereira had previously provided the court with a valid address. Pereira, never having received the updated notice, failed to appear at court and was ordered removed. In 2013, Pereira was arrested driving without headlights on and was again detained by DHS. At this time, he had been in the country for a period exceeding 10 years, all the while, unaware of his order of removal.

Sotomayor writes that the “essential function” of a notice to appear is to inform noncitizens, to notify them, of when and where they are to appear for removal proceedings. If no time or location is explicitly stated, the noncitizen cannot be reasonably expected to appear for their removal proceedings. Without a time and date, a notice is not considered merely incomplete, but is indeed not a notice to appear at all. Sotomayor elaborates that it is unimageable as to why DHS and the immigration courts could not work together to schedule hearings before sending the notices to appear, given today’s innovative technologies.

The court ruled that since Pereira’s initial notice to appear failed to provide a specific time and location of his removal proceedings it is not considered notice to appear. Since Pereira never received a genuine notice, the “clock” indicating his 10 years of uninterrupted presence in the U.S. never stopped.

This decision allows Pereira to fulfill at least one of the four requirements that would make him eligible to apply for cancellation of removal. Furthermore, any other non-permanent residents or non-citizens who received a notice to appear, void of a specific date or location of their removal proceedings, may now also fulfill the 10-year continuous presence requirement, given that their “clock” never stopped either. Immigrants who had previously not considered or have been denied cancellation of removal waivers because of ineligibility may now have the option to apply for this waiver or to reopen their cases.

What Does This Mean?

It means more than the opinion says. Since 1996, the Notices to Appear the government has filed to start deportation proceedings almost never announce the date and time of the hearing.

This is a Notice to Appear, also regularly referred to as an “NTA”:

Near the bottom, every form has a line for “Date” and “Time” as the statute requires. But nearly every NTA says something like “a date to be set” or “to be determined.” And without stating a date and time, the document isn’t really a Notice to Appear.

Implication 1: Cancellation of Removal Eligibility

The Pereira case was about cancellation of removal. The 10 years of physical presence required for cancellation of removal stops when a person is served with an NTA. But now that the Supreme Court has held that a document is not a “Notice to Appear” unless it contains the date and time of the hearing, many people who have been in the United States will be eligible to apply for cancellation of removal, even if they were served with a defective NTA previously.

This might mean people who have already been ordered removed could have their hearings reopened since now they’re eligible for cancellation of removal. We are not yet sure whether the decision will be applied retroactively.

Implication 2: Termination of Removal Proceedings

The much larger implication of this decision is that, it would seem, any removal proceeding that was started with a defective NTA, which the Supreme Court now very clearly says does not count as an NTA, will likely need to be terminated, and the DHS will have to start over, serve a compliant NTA, and file the compliant NTA with the court to start new removal proceedings. The statute about how to start removal proceedings, INA 239, requires all proceedings to start with a “Notice to Appear.” The Supreme Court’s determination that these defective documents do not count as “Notices to Appear” pretty clearly means proceedings started with them are defective.

This is a deeply impractical implication, because it might mean the DHS basically has to completely start over with all pending cases. But the impracticality is not relevant. As Justice Scalia wrote, the role of the courts is “to apply the statute as it is written—even if we think some other approach might ‘accor[d] with good policy.’” Commissioner v. Lundy, 516 U. S. 235, 252 (1996).

There is no mechanism in the statute to fix this other than by terminating, because the initiation of removal proceedings must start with a “Notice to Appear,” and that document isn’t an NTA if it didn’t have the date and time of the hearing.

Implication 3: Moving to Reopen and Lack of Notice

Without getting too technical, this decision will assist with reopening old cases where immigrants were ordered removed, especially when they were ordered removed “in absentia.”

One reality in this decision that isn’t mentioned but lies beneath the surface is that so many people got in absentia orders because the original NTA didn’t have the time and date of the hearing and the person was no longer at the address they gave ICE by the time the hearing notice came. I’m working on reopening a case right now for a client who crossed the border alone at age 11, was issued a defective NTA, and then resettled with her family. The government didn’t file the NTA with the court until a year later, though, and when it finally mailed the hearing notice to her, she was no longer at the address she had given when she was at the border. The court held a hearing, she didn’t know about it and didn’t appear, and she was ordered removed.

Moving to reopen an “in absentia” order requires proof, at least in some cases, that the immigrant did not receive “notice.” That “notice” includes having received an NTA. So if these NTAs issued on the border aren’t compliant, the immigrant did not receive the required “notice” and she is eligible to reopen her case.

An even more important implication is that when you file one of these motions to reopen, they only automatically stay the removal of the immigrant if she didn’t receive “notice.” Here is the language from that regulation:

An order entered in absentia pursuant to section 240(b)(5) may be rescinded upon a motion to reopen filed at any time if the alien demonstrates that he or she did not receive notice in accordance with sections 239(a)(1) or (2) of the Act

A common scenario involves a person had no idea she had been ordered removed but suddenly gets picked up by ICE. Because she has a final order of removal, ICE can deport her immediately without a hearing. So often we’re racing to get a motion to reopen filed, and we want the filing of that motion to reopen to act as a temporary stay of her deportation. If the removal order isn’t temporarily stayed, the immigrant could be deported before it can be ruled on.

Now that the Supreme Court has said an NTA without the date and time is never the kind of notice described at INA 239(a)(1) and (2), every motion to reopen an in absentia order of removal is necessarily a “lack of notice” motion (as long as the NTA wasn’t compliant), so every motion to reopen should temporarily stay the immigrant’s removal.

Where Do We Go Now?

If you represent immigrants, this feels like the wild wild west. We will see how the immigration courts apply this decision. Only a day since the decision was issued, we’ve already heard multiple reports of IJs in Los Angeles terminating removal proceedings for people who have defective NTAs.

I suspect there will be litigation and eventually Circuit Court opinions defining the limits of this decision. However, no matter what future guidance is issued, we will be using the Pereira decision to fight for fair hearings for every immigrant being charged with removability.

]]>https://www.hoppocklawfirm.com/pereira-v-sessions-opens-multiple-new-doors-to-defend-against-removal/feed/05937“No Dark Courtrooms” is the Secret EOIR Policy That May Ruin Your Summerhttps://www.hoppocklawfirm.com/no-dark-courtrooms-is-the-secret-eoir-policy-that-may-ruin-your-summer/
https://www.hoppocklawfirm.com/no-dark-courtrooms-is-the-secret-eoir-policy-that-may-ruin-your-summer/#respondFri, 01 Jun 2018 19:02:58 +0000https://www.hoppocklawfirm.com/?p=5907Some concerning developments in the last few days require writing this post when we still don’t have all of the details. Apparently the Immigration Courts are implementing a system of “No Dark Courtrooms,” which may mean Immigration Courts operating 24/7. We are still trying to determine the contours of this program, but it appears to […]

Some concerning developments in the last few days require writing this post when we still don’t have all of the details. Apparently the Immigration Courts are implementing a system of “No Dark Courtrooms,” which may mean Immigration Courts operating 24/7.

The Problem is the Backlog

The problem that needs to be solved is the now-well-known backlog in the Immigration Courts. Right now, there are over 692,000 cases pending in the Immigration Courts nationwide.

There are roughly 60 Immigration Courts nationwide and 350 Immigration Judges. That averages out to about 2000 cases per Immigration Judge, which is a lot.

Because of the backlog, there are courts where trials are being set in 2022.

That means unscrupulous people with no lawful claim to defend against a removal order are able to game the system and buy more time. But people with good cases are left languishing in this system. They’re eligible for lawful status eventually, but they may have to wait 6 or more years to achieve it.

The solution is obvious: close some of these cases or hire more judges to adjudicate them. And yet, Attorney General Sessions is now making it near impossible to close cases. And Congress has no interest in spending more money. So, what’s an agency to do?

The agency has never said what “No Dark Courtrooms” means. Apparently they told the Washington Post that this will involving hiring “retired judges to fill those courts,” which could mean various things.

Recent FOIA Requests

Since EOIR has never said what “No Dark Courtrooms” means, in March we filed a FOIA request asking for the policy documents and e-mails explaining it.

In response the EOIR says there’s no such “policy.” But what we can glean from their e-mails it appears the strategy is to fill the courtrooms that are currently closed when Immigration Judges have days off. First, Immigration Judges often get a few days a month off.

That big black box appears to be a discussion of what the policy will entail. They’ve redacted it, and we’ve appealed. But the general idea seems to be that when those judges can’t be in their courtrooms hearing cases, other judges will hear cases in those courtrooms via video conferencing.

We can tell through FOIA responses that they’re having meetings about the “policy.”

But they haven’t shared the details (yet). We have filed an appeal to try to obtain the actual policy documents and details of what this policy might entail, which is still pending. We will file a lawsuit if they’re not produced.

The May 30, 2018 Memorandum – All Hands on Deck

On its face the policy doesn’t seem that unreasonable. As long as they give immigrants adequate notice, many of us would prefer to have their hearings sped up.

The problem is that the agency is holding a hand full of cards and won’t show them.

Then came this memo on May 30, 2018 to ALL Immigration Court personnel, essentially saying “be ready to travel to the border so we can fill courts with judges and have hearings non-stop.”

Remember, the plan was supposedly to hire more judges and then implement “No Dark Courtrooms.” But apparently they’re going forward with it by using judges assigned to other courts, rather than hire more judges.

So What Does This Mean?

According to the memo, this onslaught is supposed to start on July 7, roughly a month from now.

But staff aren’t even asked to provide their availability until June 11. Which means hearings will be scheduled and notices will be mailed to immigrants when? Mid-June? Later? This means people are likely to get weeks (or less) of notice that their hearing is set to occur in one of these border courts.

For detained individuals, the speed is welcome. But for people who have to take time off work, hire child care, work with their attorneys to prepare, marshal witnesses and evidence, and get themselves ready, it isn’t likely going to be enough time.

There are also a host of question we still don’t know the answers to:

Will they move cases from other courts to these border courts?

Will they be conducting hearings at night or on the weekends? Does this really mean “No Dark Courtrooms”?

How much notice will people receive that their hearing has been scheduled?

Will the union that represents the Immigration Judges object to this last-minute mobilization?

Usually the Department of Justice would give the Immigration bar fair warning before this kind of change. But this is a new era, and much of what we know about what is happening behind the scenes we have to learn through Freedom of Information Act requests. At this time there’s no reason to panic, but something strange is definitely afoot.

Without any explanation, the Department of Justice stopped posting its “Immigration Litigation Bulletin” online in mid-2016. The older versions are online here. The Immigration Litigation Bulletin is a publication by the Department of Justice’s “Office of Immigration Litigation” which summarizes recent cases, discusses trends in adjudications, statistics, and long-term developments in the law. It’s an incredibly valuable resource for people who want to know more about what is happening behind the scenes.

I filed a FOIA request in January seeking all Immigration Litigation Bulletins going back to July, 2016 (when they stopped posting them online). This afternoon I received some of them (January, 2017 is missing, so we’ll appeal). I’ll also be filing another FOIA request for the Immigration Litigation Bulletins for the first half of 2018 and will post them where when I receive them.

]]>https://www.hoppocklawfirm.com/immigration-litigation-bulletin-july-2016-to-november-2017/feed/05896Three Operation Janus Updates in the Pending Cases in Federal Courthttps://www.hoppocklawfirm.com/three-operation-janus-updates-in-the-pending-cases-in-federal-court/
https://www.hoppocklawfirm.com/three-operation-janus-updates-in-the-pending-cases-in-federal-court/#respondTue, 15 May 2018 02:44:36 +0000https://www.hoppocklawfirm.com/?p=5888Three of the pending Operation Janus cases which had been largely dormant the last few months have now been updated on PACER. As I have written previously, these cases are “locked” on PACER, meaning you can read the titles of the documents that have been filed but can’t read the documents themselves. Here is what […]

Three of the pending Operation Janus cases which had been largely dormant the last few months have now been updated on PACER. As I have written previously, these cases are “locked” on PACER, meaning you can read the titles of the documents that have been filed but can’t read the documents themselves.

In this case the Defendant finally filed his “Answer.” Then on May 9, 2018 the DOJ filed a motion asking the court to deem certain responses as “admissions” or to strike his Answer. We haven’t been able to read the pleading, but it appears the gist of their argument is that the Answer didn’t respond fully to the allegations in the Complaint.

In federal court, a civil case usually starts with the filing of a Complaint. Once they’re served, the Defendant has to file an Answer to the Complaint within a certain amount of time. The Answer can respond to the allegations in the Complaint in a number of ways. It can admit the allegation as true (meaning the parties don’t have to fight about it), can deny the allegation, or can state that the Defendant doesn’t have sufficient information to admit or deny the allegation and thus effectively “deny” it as a way of deferring admitting or denying it until more facts are known.

The DOJ only files a pleading like the one it filed here if the Answer responds to allegations but doesn’t explicitly admit, deny, or defer it. One reason defense attorneys get cagey with their responses is that their filings are governed by “Rule 11,” which says the attorney’s signature on the document certifies, among other things, that “the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.” Again, we don’t know why the government filed its pleading, because it’s locked on PACER. But that’s my best guess based on the context.

In this case the defendant filed a Motion for Summary Judgment on April 13. The DOJ filed its statement in opposition to the motion on April 26, 2018. Summary Judgment is a way for a judge to decide a case without having a trial. To grant Summary Judgment the judge has to determine that the facts are not in dispute and that, based on those undisputed facts, one side or the other wins the case. The DOJ had already moved for summary judgment and the Defendant had opposed their motion.

So, Judge Barksdale will likely issue one decision addressing both motions. If she grants either of the motions in full, then the case is over (although either side would likely appeal). If she denies both motions or only partially grants one or both (meaning some of the issues are still alive), then she’ll likely schedule a trial.

This one remains a real head-scratcher. The government finally claims as of May 14, 2018 that it has served the defendant with a copy of the Complaint. That’s a start!

What’s weird is that the government is way too late to serve the Complaint, never asked for an extension, and doesn’t appear to have a good reason for the delay.

The deadline to serve the Complaint under Rule 4 was 90 days of the filing of the Complaint. In this case, the Complaint was filed 9/19/17 but then the DOJ didn’t ask the court to issue a summons until late November. The Summons was issued 11/7/2017. When the 90th day approached, the DOJ never filed a motion asking for more time to serve the defendant (Rule 4 says you have 90 days to serve, but the court can extend that time if you ask for an extension and provide a good reason).

Why didn’t the government ask for an extension when it exceeded 90 days? Why did it wait two months to ask for a summons? Why did it take 6 more months after that initial delay to actually serve the defendant? Why didn’t the court dismiss the lawsuit as required by Rule 4 when a party doesn’t serve the Complaint or ask for an extension? I don’t even have a good guess. Nothing in this case makes any sense.

[update July 3, 2018: the government eventually filed a summons it claims to have served on Mr. Mahmood, and his deadline to respond, June 1, has now passed]

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These are the only three remaining Operation Janus cases pending. One was already granted when the Defendant never entered an appearance or filed any documents. We anticipate the DOJ will be filing more of these cases shortly, especially if they can get these cases granted without having to fight very hard.

It will be interesting to see whether Rashid Mahmood hires counsel and files a motion to dismiss the Complaint for failing to comply with Rule 4.